Court of Appeals of Illinois, First District, Fifth Division
THE FOREST PRESERVE DISTRICT OF COOK COUNTY, ILLINOIS, a Body Corporate and Politic of the State of Illinois, Plaintiff and Respondent-Appellant and Cross Appellee,
CONTINENTAL COMMUNITY BANK AND TRUST COMPANY, an Illinois Corporation, as Successor to May wood-Proviso State Bank, as Trustee under Trust Agreement dated November 1, 1983, known as Trust No. 6173; JACK RIVO; and UNKNOWN OTHERS, Defendants Greg Bedell, Fee Petitioner-Appellee and Cross-Appellant. THE FOREST PRESERVE DISTRICT OF COOK COUNTY, ILLINOIS, a Body Corporate and Politic of the State of Illinois, Plaintiff and Respondent-Appellee,
CONTINENTAL COMMUNITY BANK AND TRUST COMPANY, an Illinois Corporation, as successor to May wood-Proviso State Bank, as Trustee under Trust Agreement dated November 1, 1983, known as Trust No. 6173; JACK RIVO; and UNKNOWN OTHERS, Defendants Greg Bedell, Fee Petitioner-Appellant.
from the Circuit Court of Cook County. Nos. 15 L 50227 00 L
50726 (consolidated) Honorable Kay M. Hanlon and Eileen
O'Neill Burke, Judges Presiding.
JUSTICE ROCHFORD delivered the judgment of the court, with
opinion. PRESIDING JUSTICE REYES and JUSTICE LAMPKIN
concurred in the judgment and opinion.
1 The Forest Preserve District Of Cook County, Illinois, a
body corporate and politic of the State of Illinois (the
District), originally filed this suit seeking to utilize its
power of eminent domain to acquire certain property held in
trust by defendant, Continental Community Bank And Trust
Company, an Illinois corporation, as successor to May
wood-Proviso State Bank, as Trustee under Trust Agreement
dated November 1, 1983, known as Trust No. 6173 (the
Trustee), for the benefit of defendant, Jack Rivo
(collectively referred to as Mr. Rivo, as he is both a named
defendant and the beneficiary of the trust).
2 In its current appeal (no. 1-17-0680), the District seeks:
(1) relief from a judgment for attorney's fees and costs
awarded to Rivo's former attorney, fee petitioner Greg
Bedell; and (2) reversal of the circuit court's orders
denying the District leave to file a complaint for
interpleader and denying its motion to declare invalid an
attorney lien asserted by Mr. Bedell. In his cross-appeal,
Mr. Bedell seeks reversal of the circuit court's denial
of his petition to adjudicate and enforce his attorney's
lien. Finally, in Mr. Bedell's separate appeal (no.
1-17-0680), which he describes as a "secondary,
alternative remedy" should this court rule in the
District's favor on its appeal, Mr. Bedell again seeks
reversal of the circuit court's denial of his petition to
adjudicate and enforce his attorney's lien.
3 With respect to the District's appeal, while we affirm
the circuit court's decision to grant Mr. Bedell an award
for attorney fees and costs, we vacate that part of the
judgment determining the amount of fees and costs and remand
for a recalculation of the proper amount of that award under
a theory of quantum meruit. In light of our
resolution of this issue, all of the remaining issues raised
by the parties on appeal are rendered moot.
4 I. BACKGROUND
5 This case has been the subject of many prior appeals to
this court, yielding-inter alia- decisions affirming
the circuit court's order granting summary judgment in
favor of Mr. Rivo with respect to the condemnation complaint,
as the District never passed a valid ordinance authorizing
the acquisition of the property in question, and a decision
dismissing for lack of jurisdiction a prior appeal from the
circuit court's award of attorney fees. See Forest
Preserve District of Cook County v. Continental Community
Bank & Trust Co., No. 1-12-2211 (Sept. 6, 2012)
(appeal dismissed for lack of jurisdiction); Forest
Preserve District of Cook County v. Continental Community
Bank & Trust Co., 2014 IL App (1st) 131652-U (appeal
dismissed for lack of jurisdiction); Forest Preserve
District of Cook County v. Continental Community Bank &
Trust Co., 2016 IL App (1st) 152145-U (summary judgment
in favor of Mr. Rivo on condemnation complaint affirmed);
Forest Preserve District of Cook County v. Continental
Community Bank & Trust Co., 2017 IL App (1st)
153512-U (appeal from attorney fee award dismissed for lack
of jurisdiction). The orders entered by this court in those
prior appeals, including the factual background set out
therein, are incorporated herein by reference. Therefore, we
restate here only those facts necessary to our resolution of
the appeals currently pending before us.
6 This dispute dates to 2000, when the District began filing
a number of eminent domain actions, including this suit in
which the District sought to acquire 12.5 acres that were
held by the Trustee for the benefit of Mr. Rivo. In 2003, Mr.
Rivo agreed to give the District fee simple title to that
property in exchange for $1.4 million, the circuit court
entered an agreed judgment order to that effect on March 6,
2003, and Mr. Rivo subsequently received the funds, less $50,
000 that was retained in an escrow account and was to be paid
when Mr. Rivo finally vacated the property.
7 Other property owners who had not entered into settlement
agreements opposed the condemnation of their properties. They
argued, successfully, that the District never had legal
authority to condemn any of the relevant properties because
the board had not properly adopted the necessary ordinance.
See, e.g., Forest Preserve District of Cook
County v. First National Bank of Evergreen Park, Nos.
1-04-1536 and 1-04-3777 (consolidated) (2008) (unpublished
order under Supreme Court Rule 23). On October 27, 2003-in
light of the success these other property owners had in
opposing condemnation of their properties-Mr. Rivo petitioned
for relief from the agreed judgment order entered in this
matter, pursuant to section 2-1401 of the Code of Civil
Procedure (Code). 735 ILCS 5/2-1401 (2004).
8 Mr. Rivo was represented by Mr. Bedell in the section
2-1401 proceeding, pursuant to a retainer agreement executed
in October 2003. With respect to the scope of Mr.
Bedell's representation, the retainer agreement provided
that Mr. Bedell's representation of Mr. Rivo would be
"limited to seeking post judgment relief through the
filing and prosecuting [of] a petition to vacate the
settlement and judgment entered against you under 735 ILCS
5/2-1401." With respect to Mr. Bedell's
compensation, the retainer agreement provided that Mr. Bedell
would be paid "a non-refundable $1, 200.00
retainer and that in the event of recovery, whether by
settlement or trial, I will be paid 20% of the amount
recovered. (The $1, 200 will be deducted from the 20%
contingency fee in the event of recovery.) If there is no
recovery, you owe me no more fee than the retainer you
paid." Mr. Rivo was also responsible for the payment of
all "costs associated with this matter." On July
22, 2009, a written notice of attorney's lien detailing
the contingency provision contained in the retainer agreement
was served by hand-delivery upon the District's general
9 The parties ultimately filed cross-motions for summary
judgment on the section 2-1401 petition. In an order entered
on February 15, 2012, the circuit court granted summary
judgment in favor of Mr. Rivo, denied the District's
cross-motion, vacated the agreed judgment order previously
entered on March 6, 2003, and reinstated the condemnation
case. The District attempted to appeal from this decision,
but the appeal was dismissed for lack of appellate
jurisdiction. Forest Preserve District of Cook County v.
Continental Community Bank & Trust Co., No.
1-12-2211 (Sept. 6, 2012).
10 Thereafter, on October 10, 2012, Mr. Bedell filed both a
petition for attorney fees and costs, as well as a motion to
withdraw as Mr. Rivo's attorney. In the petition for
fees, Mr. Bedell contended that he had spent nearly 300 hours
representing Mr. Rivo in the section 2-1401 proceedings, his
usual and customary rate during that time ranged between $250
and $350 per hour, and $1, 546.50 in costs had been
incurred. Mr. Bedell therefore sought an award of $93,
116.50 in fees and costs. The fee petition did not
reference or rely on the contingency fee agreement contained
in the retainer agreement in any way.
11 In the motion to withdraw, Mr. Bedell asserted that-in
light of the summary judgment granted in favor of Mr. Rivo on
the section 2-1401 petition-he had satisfied his obligations
to Mr. Rivo under the original retainer agreement. Mr. Bedell
also contended that, while he had consulted with Mr. Rivo
regarding the prosecution of additional damages claims
against the District, Mr. Rivo was unwilling to follow Mr.
Bedell's advice and there had been a breakdown in
communication between attorney and client. Noting these facts
and his interest in the outcome of his fees petition, Mr.
Bedell asked the circuit court for leave to withdraw as Mr.
Rivo's attorney and leave to file an appearance on his
own behalf with respect to the fee petition. Mr. Bedell's
motion to withdraw was granted on October 30, 2012.
12 Mr. Rivo subsequently obtained new counsel to represent
him in prosecuting various claims against the District. Those
claims included counterclaims stemming from the condemnation
proceedings, including allegations that Mr. Rivo was entitled
to millions of dollars in damages and to reacquire title from
the District. Mr. Rivo's new counsel also filed a motion
for summary judgment on the District's complaint for
13 In response, the District filed a combined motion which
sought to: (1) vacate the prior ruling granting Mr.
Rivo's section 2-1401 petition, (2) strike Mr. Rivo's
counterclaims, and (3) deny Mr. Rivo's motion for summary
judgment in this condemnation action.
14 These motions were heard in 2013. In a three-part order
entered on April 18, 2013, the circuit court denied the
District's combined motion to vacate the prior ruling
granting Mr. Rivo's section 2-1401 petition and to strike
Mr. Rivo's counterclaims, and granted Mr. Rivo's
motion for summary judgment on the condemnation complaint.
15 The District filed an appeal from the denial of its motion
to vacate the prior ruling granting the section 2-1401
petition. However, this court once again dismissed the
District's appeal for lack of appellate jurisdiction.
Forest Preserve District, 2014 IL App (1st)
131652-U, ¶ 10.
16 Upon remand, Mr. Rivo filed a motion seeking a finding of
enforceability and appealability with respect to the summary
judgment ruling, pursuant to Illinois Supreme Court Rule
304(a) (Ill. S.Ct. R. 304(a) (eff. Jan. 1, 2015)), while the
District filed a motion seeking reconsideration of the grant
of summary judgment in favor of Mr. Rivo on its condemnation
complaint. In an order entered on June 26, 2015, the circuit
court denied the District's motion and granted Mr.
Rivo's motion, finding that there was no just reason to
delay appeal of "[t]he 4-8-13 order granting summary
judgment." The District appealed, and this court
concluded that that the circuit court properly granted
summary judgment in favor of Mr. Rivo on the condemnation
complaint. Forest Preserve District of Cook County v.
Continental Community Bank & Trust Co., 2016 IL App
(1st) 152145-U. The District filed a petition for leave to
appeal that decision with our supreme court which, pursuant
to a settlement agreement discussed below, was subsequently
withdrawn on April 11, 2017.
17 Meanwhile, while Mr. Bedell's original petition for
fees was stricken for failure to attach and account for the
retainer agreement, he was granted leave to file an amended
petition. The operative amended fee petition was filed on
September 15, 2015. Therein, Mr. Bedell specifically relied
upon section 70(a) of the Eminent Domain Act (the Act) (735
ILCS 30/10-5-70(a) (West 2014)), which provides for the award
of fees and costs where it is determined that a plaintiff
"cannot acquire the property by condemnation" and
the defendant incurs such fees and costs "in defense of
the complaint." He also primarily relied upon the
retainer agreement to support a claim for fees and costs.
According to Mr. Bedell's amended petition, the retainer
agreement entitled him to a fee of 20% of any amount
recovered. Further, Mr. Bedell asserted:
"When this Court granted the 2-401 petition and vacated
the order awarding the Defendant's property to the
District, Bedell recovered for the Defendant his property. As
a basis of the fees to be awarded under the Act, the Court
should award the fee due from Defendant to Bedell under the
fee agreement: using the conservative value of the
Defendant's property, which the District determined in
2003 to be $1, 400, 000, Bedell is entitled to a fee of $280,